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Could We Postpone the Election — Even If We Wanted To?

During the last four weeks, the Election Assistance Commission, the Justice Department and the Department of Homeland Security have considered asking Congress for authority to delay this year’s election if a terrorist attack were to coincide with the November vote.

Members of Congress from both parties have said that a delay would represent a concession to the terrorists. They were right in questioning the idea, but they should have recognized that at this point, developing a plan for delaying the election is not feasible. Why is that? Because states will resist.

Setting the date of national elections is one of the few powers that the Constitution specifically divides between the states and the federal government. According to Article I, Section 4: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such regulations.”

Since 1845, Congress has required congressional elections to occur on the first Tuesday after the first Monday of November. Otherwise, the states generally have retained the right to regulate elections. This control over election rules allows state politicians to influence national politics indirectly. Examples from both the recent and distant past suggest that this tradition will be difficult to end.

In the late 19th century, Southern states blocked federal efforts to prevent them from using measures such as the poll tax or literacy tests to deny African-Americans the right to vote. Similarly, in the early 20th century, state party machines fought attempts by Progressives in Congress to limit corruption by changing election procedures. The Voting Rights Act of 1965 restricted some state power over elections but only after years of public protest and congressional debate.

More recently, the 2000 debacle in Florida — Palm Beach County’s butterfly ballot, the debate over hanging chads, and the partisanship of Florida’s top election official, Secretary of State Katharine Harris — seemed to demonstrate that state or local officials no longer were competent to oversee elections. Yet four years later, little has changed: Congress didn’t act to impose changes, and so state officials retain control over election guidelines.

The threat of terrorists disrupting a national election might overwhelm this constitutional custom of allowing the states to run elections. But abandoning long standing tradition could occur only after sustained national debate, not through a hastily devised plan.

Any mechanism for election delay also would need to address the fact that in many states, a good deal of voting occurs before Election Day. In 1932, Supreme Court Justice Louis Brandeis said that a state could serve as a laboratory of democracy. In the last 15 years, these “laboratories” have tackled the issue of declining voter turnout by relaxing restrictions on absentee voting. Their hope: allowing people to vote at their convenience would increase political participation.

As a result of new procedures, in Oregon, all voting now occurs by mail. The state sends out ballots out 18 days before Election Day. In 2000, roughly one-third of the electorate in Washington state cast ballots by mail. A substantial number of citizens in California and Texas did likewise. Even in a state like North Carolina, with more typical electoral guidelines, 10 percent of the electorate voted by mail in 2000.

Postponing an election but still counting these ballots would create what would amount to two separate elections. Nullifying the votes of those who mailed ballots in good faith could wind up denying them the franchise in a re-vote.

In the end, establishing a workable mechanism to delay a national election would require reassessing the sharing of power between the states, localities and the national government. Politicians and election officials should have started a national debate on this question immediately after 9/11. But they did not, and there is no way to address the issue in a realistic manner now.

Given the international climate, this situation seems likely to persist. Therefore, politicians should begin preparing for the 2006 elections. A bipartisan commission to handle the task would remove concerns that an administration in power might seek to delay an election for partisan rather than national security reasons. The commission should set clear criteria for when and how an election should be postponed. It also should lay the groundwork for transferring full control of regulating elections to the federal government.

For now, though, with barely more than three months before Election Day, there is little choice but to rely on the existing state and local election machinery.

Robert David Johnson is a professor of history at Brooklyn College and the CUNY Graduate Center. He is the author of "Ernest Gruening and the American Dissenting Tradition" (1998) and a writer for the History News Service.